Volkswagen of America, Inc. v. Andrew Ramirez, Sr

NUMBER

13-01-196-CV

COURT

OF APPEALS

THIRTEENTH

DISTRICT OF TEXAS

CORPUS

CHRISTI - EDINBURG

VOLKSWAGEN OF

AMERICA, INC. Appellant,

v.

ANDREW RAMIREZ, SR . Appellee .

On

appeal from the 93rd Dis trict

Court of Hidalgo County ,

Texas .

OPINION

Before

Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion

by Chief Justice Valdez

This is a product

liability case. A Volkswagen Passat driven by Haley Sperling

crossed the median of U.S. Highway 83 and collided with a vehicle driven by

Diana Alice Ramirez-Garza and occupied by her fourteen year old daughter,

Jacquelyn Renee Guerra. Diana Alice

Ramirez-Garza was killed in the collision and her daughter suffered severe

injuries. Andrew Ramirez, Sr., Ester

Ramirez, and Andrew Ramirez, Jr., as next friend of Jacquelyn Renee Guerra and

as administrator of the estate of Diana Alice Ramirez-Garza, sued Volkswagen of

America, Inc., alleging that the accident was caused by a defective wheel

assembly on Sperling = s Passat .

The initial trial of

this matter ended with a jury verdict in favor of Volkswagen; however, the

trial court granted appellees a new trial A in the interest of justice. @ Upon retrial, the jury found

that the Volkswagen Passat involved in the collision

was defective and Volkswagen = s negligence proximately caused the automobile accident resulting in appellees = injuries. The trial court entered judgment on the verdict, awarding appellees $17,237,664.38.

Volkswagen appeals this judgment by seven issues. We affirm.

Qualification

of Juror

In its first issue, Volkswagen

contends that the jury = s verdict cannot support the judgment because one of the ten jurors

was disqualified from serving on the jury.

Almost thirty years before the trial of the instant case, the juror had

pleaded guilty to a felony, successfully completed probation, and obtained a

dismissal of the charges against him. In

the instant case, this juror failed to indicate on his questionnaire that he

had been an accused in a felony criminal case.

Volkswagen discovered the juror = s conviction after trial and

made it one basis for its motion for new trial.

Volkswagen argues that the juror was unqualified to serve on the

jury. Volkswagen further argues that the

statute authorizing dismissal of the charges against the juror is

unconstitutional because it effectively A authorizes Texas courts to grant pardons @ despite the fact that the Texas Constitution reserves that right to

the Governor.

The trial court = s ruling on a motion for new trial will not be disturbed on appeal in the

absence of an abuse of discretion. Strackbein v. Prewitt , 671 S.W.2d 37, 38 ( Tex. 1984). It is an abuse of discretion for a trial

court to rule arbitrarily, unreasonably, or without regard to guiding legal

principles, or to rule without supporting evidence. Bocquet

v. Herring , 972 S.W.2d 19, 21 ( Tex. 1998).

Under the government

code, a prospective juror must not have been convicted of a felony. See Tex.

Gov = t Code Ann. ' 62.102(7) ( Vernon 1998). However, in the instant

case, the juror in question had received a probation order providing that:

his plea of guilty in this cause is hereby ordered withdrawn, and the

indictment is ordered dismissed. It is

the further order of this Court that the defendant . . . is hereby discharged

from the terms, penalties, and disabilities of the said offense for which he

was convicted in this cause and from the Probation which was heretofore granted

him, and that the defendant be in all things discharged and released from the

jurisdiction of this court for the offense for which he was convicted in this

cause.

This order was entered under the authority of

article 42.12, section 20, of the code of criminal procedure, under which a

court may set aside a guilty verdict or permit the defendant to withdraw his plea

of guilt, and thereafter A shall dismiss the accusation, complaint, information or indictment

against the defendant, who shall thereafter be released from all penalties and

disabilities resulting from the offense or crime of which he has been convicted

or to which he had pleaded guilty. @ Tex. Code Crim. Proc. Ann.

42.12, ' 20 ( Vernon Supp. 2002). [1]

In 1996, the Waco court of

appeals observed that, A [u] ntil recently, @ Texas courts had A unanimously @ held that article 42.12, section 20, operated to restore to a

convicted felon his ability to sit on a jury once he successfully completed the

terms of his probation. Hoffman v.

State , 922 S.W.2d 663, 668 (Tex. App. B Waco 1996, pet. ref = d)(citing Walker v. State , 645 S.W.2d 294, 295 (Tex. Crim . App. 1983); Payton v. State , 572 S.W.2d 677,

678-79 (Tex. Crim . App. 1978)(on reh = g), overruled on other grounds , Jones v. State , 982

S.W.2d 386 (Tex. Crim . App. 1998); Smith v. State ,

859 S.W.2d 463, 464 (Tex. App. B Fort Worth 1993, pet. ref = d); Day v. State , 784 S.W.2d 955, 956 (Tex. App B Fort Worth 1990, no pet.)). The

Waco court recognized, but refused to follow, R.R.E. v. Glenn , 884

S.W.2d 189 (Tex. App. B Fort Worth 1994, writ denied), which held that article 42.12, section 20,

unconstitutionally infringed upon the executive branch = s exclusive authority to restore a convicted felon = s civil rights. Hoffman ,

922 S.W.2d at 668 ; R.R.E., 884 S.W.2d at 192-93 ; see also Dempsey v.

Beaumont Hosp., Inc. , 38 S.W.3d 287, 289-90 (Tex. App. B Beaumont 2001, pet. dism = d by agr .)(citing Glenn in holding

that convicted felon was constitutionally disqualified from jury service). [2]

As an initial matter,

we conclude that Volkswagen = s argument that article 42.12, section 20 is unconstitutional lacks

merit. Article IV, section 11(b) of the

Texas Constitution grants the exclusive power to grant a pardon to the

executive branch of the government; however, the district courts of Texas have the

constitutional and statutory authority to dismiss charges against a defendant

from the moment of indictment until the time the defendant completes the terms

of his probation. Hoffman , 922

S.W.2d at 668 . This authority differs

from the constitutional authority of the executive branch to pardon a criminal

defendant after conviction. See id. Article 42.12, section 20 does not grant the

judiciary and legislature greater authority than allowed by the Texas

Constitution. Id. ; see

Ex parte Giles , 502 S.W.2d 774, 785 (Tex. Crim . App. 1973) (earlier version of art. 42.12, ' 20 enacted pursuant to Tex.

Const . art IV, ' 11A); Baker v. State , 70 Tex. Crim . 618, 158 S.W. 998, 1003 (1913) (affirming

constitutionality of earlier version of art. 42.12, ' 20) . We conclude that article

42.12, section 20 does not violate the Texas Constitution as an infringement on

the executive right to grant a pardon.

We refuse to follow Glenn or Dempsey to the extent that

these cases may hold otherwise.

Having concluded that article 42.12 of the Texas Code of Criminal

Procedure is constitutional, we next determine whether a dismissal under this

provision operates to allow an individual with a prior felony conviction to

serve on a jury. Both the Texas Supreme

Court and the Texas Court of Criminal Appeals have recently considered the

extent to which a dismissal under article 42.12 can relieve the penalties and

disabilities associated with a felony conviction.

The Texas Supreme Court addressed the effect of article 42.12, section

20 with regard to the right of a convicted felon to carry a concealed

handgun. See Tune v. Tex. Dep = t of Pub. Safety , 23 S.W.3d 358 ( Tex. 2000). In Tune , although Tune = s prior felony

conviction had been dismissed under article 42.12, the court nevertheless

concluded that this conviction prevented Tune from obtaining a permit to carry

a concealed handgun. Id. at 363-64. In reaching this conclusion, the court noted

that the Concealed Handgun Act (the A Act @ ) provided an explicit

definition of the term A convicted. @ Under the Act, a person is A convicted @ after an adjudication

of guilt is entered against him whether or not his sentence is subsequently

probated and he is discharged from community supervision. Id. at 363. Tune had been A convicted @ according to this

definition. The court thus stated that:

If the Handgun Act didn = t include a specific

definition of the term A convicted, @ then the inability to

obtain a concealed-handgun license might be one of the penalties and

disabilities removed when the district court dismissed Tune = s indictment. But the Act does include a specific

definition. And, for obvious reasons,

the Legislature may wish to keep concealed handguns out of the hands of persons

who have been convicted of a felony, even if those persons satisfactorily

complete community supervision.

Id. at 364 (footnote

omitted). In reaching its conclusion,

the Texas Supreme Court reasoned that the Legislature could expressly provide

in article 42.12 that any general penalties and disabilities resulting from a

conviction are lifted when a person is discharged from community supervision

and the indictment is dismissed, and yet retain certain specific restrictions

on those who have previously been convicted of felonies. Id. In the instant case,

we note that the government code contains no such restrictive language

governing the meaning of a A conviction @ for the purposes of

jury service. See Tex. Gov = t

Code Ann .

' 62.102(7) ( Vernon 1998).

Recently, the Texas Court of Criminal Appeals held that a felony

conviction set aside under article 42.12 is not a felony conviction for

purposes of enhancement under section 46.04(a) of the Texas Penal Code, making

it an offense for a convicted felon to possess a firearm. See Cuellar v. State , No. 0733-01,

2002 Tex. Crim . App. LEXIS 31,

at *14 ( February 13, 2002 ). According to Cuellar, A a person whose

conviction is set aside pursuant to an Article 42.12, ' 20, order is not a convicted

felon. @ Id.

The analysis and reasoning employed by the Texas Court of Criminal

Appeals in Cuellar applies

equally to the instant case. The Cuellar

court specifically noted that although article 42.12, section 20 provides for

the removal of A all penalties and

disabilities @ upon dismissal, it

also contains express exceptions to the removal of disabilities. See id. Under article 42.12, section 20, subsection

one, if the discharged person is subsequently convicted of another criminal

offense, the previously dismissed former felony conviction will resurrect

itself and be made known to the trial judge.

Tex. Code Crim. Proc. Ann.

art. 42.12, ' 20(a)(1) ( Vernon Supp. 2002). Under subsection two, if the discharged

person is applying for a license to run a child care facility or currently has

such a license, the Texas Department of Human Services, in issuing, renewing,

denying, or revoking such a licence , may consider the

fact that the person had previously received community supervision. See id. at ' 20(a)(2). According to Cuellar , the A Legislature could add

other exceptions if it so chooses, @ and otherwise, the clear

language of article 42.1, section 20 governs.

Cuellar , 2002 Tex. Crim .

App. LEXIS 31, at *12.

Following the analyses employed by the Texas Supreme Court and the

Texas Court of Criminal Appeals, we conclude that a dismissal of a conviction

under article 44.12, section 20 operates to restore the right of a convicted

felon to serve on a jury. With certain

express exceptions, the Legislature has provided that a dismissal under this

section operates to release the convicted felon of A all penalties and disabilities. @ See Tex.

Code Crim. Proc. Ann . art. 42.12, ' 20 ( Vernon Supp. 2002). The Legislature did not provide that the

ability to serve on a jury is an exception to this rule, and thus, the A clear language @ of article 42.12,

section 20 governs. Id .

We overrule Volkswagen = s first issue.

Hearsay

Evidence

In its second issue, Volkswagen argues that the trial court = s admission of

inadmissible hearsay evidence from a A mystery @ witness constituted

reversible error. The trial court

allowed appellees to introduce the videotaped

statement of an eyewitness to the accident who was interviewed by a local news

crew at the accident scene. The witness

refused to identify himself, and his face was not shown on camera. According to this witness, A The tire blew up and

it crossed the median and it hit the car that was headed from over there

towards over here. @ This witness was never located or deposed.

Whether to admit or exclude evidence is a matter committed to the

trial court = s sound

discretion. Interstate Northborough P = ship v. State , 45 Tex. Sup. Ct. J. 40, 2001 Tex. LEXIS 97, at *12-13,

(Oct. 25, 2001). To reverse a judgment

based on a claimed error in admitting or excluding evidence, a party must show

that the error probably resulted in an improper judgment. Tex.

R. App. P . 61.1; Interstate Northborough P = ship , 2001 Tex. LEXIS 97, at

*13. Typically, a successful challenge

to a trial court = s evidentiary rulings

requires the complaining party to demonstrate that the judgment turns on the

particular evidence excluded or admitted.

Interstate Northborough P = ship , 2001 Tex. LEXIS 97, at

*13.

As an initial matter, we are not persuaded that it was error to admit

the videotaped testimony. First, the

videotaped statement did not constitute hearsay. The testimony was not offered to prove the

truth of the matter asserted that A the tire blew up. @ See Tex.

R. Evid . 801(d) (hearsay is a statement offered in evidence to prove the

truth of the matter asserted).

Moreover, the trial court may have admitted the witness = s statement as an

excited utterance. According to rule

803(2) of the Texas Rules of Evidence, an excited utterance is a statement

relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition. See Tex.

R. Evid . 803(2). The witness = s statement was

videotaped immediately following the collision while the emergency personnel at

the scene were still attempting to extricate the lone surviving victim from her

vehicle. In fact, the videotape includes

background noise attributed to the machinery utilized by the emergency crew.

Volkswagen argues that the videotape shows that the witness was not A excited or upset, @ and further argues

that the statement was given A well after the event. @ However, the fact

that the witness = s comments were made

in response to questions, or that the comments were separated by a period of

time from the startling event are mere factors to consider in determining

whether the statement is admissible as an excited utterance. See Salazar v. State , 38 S.W.3d 141,

153 (Tex. Crim . App. 2001). The critical determination is whether the declarant was still dominated by the emotions, excitement,

fear, or pain of the event. Id. ; Guerra

v. State , 942 S.W.2d 28, 32 (Tex. App. B Corpus Christi 1996,

pet. ref = d). In the instant case, the witness = s statement was

memorialized by a videotape, and thus the trial court had the singular

opportunity to judge whether the witness giving the statement was under the A stress of excitement @ caused by the

accident. Given the context in which the

statement was made, we conclude that the trial court did not abuse its

discretion in admitting the videotape as an excited utterance.

As a more fundamental matter, even if we were to conclude that the

trial court committed error in admitting the videotaped statement, appellant

has failed to show that the error probably resulted in an improper

judgment. The appellees = entire case does not

rest on the admission of the videotaped statement, and thus it was in the trial

court = s discretion to admit

it. Interstate Northborough P = ship , 2001 Tex. LEXIS 97,

at *12-13 . The appellees = theory of liability

relates to the structure of the wheel bearing assembly, that is, the tire = s separation from the

car, and does not address any kind of

tire defect. In fact, the tire itself

was intact following the accident. Therefore,

the witness = s testimony that the

tire A blew up @ is irrelevant to the

product liability defect alleged by appellees and

found by the jury.

Volkswagen = s second issue is

overruled.

Expert

Testimony

By its third issue, Volkswagen contends that the trial court committed

reversible error when it admitted the testimony of plaintiffs = experts. Specifically, Volkswagen argues that the

testimony of the plaintiffs = experts was not

reliable because Dr. Cox = s opinion on defect

was unsupported by independent testing or data and Mr. Walker = s opinion on causation

made no sense to Volkswagen. Based on

these arguments, Volkswagen contends that the jury = s finding of

negligence cannot support the judgment because there is no evidence that

Volkswagen was negligent.

The A trial court has

broad discretion to determine admissibility @ of expert testimony and the appellate

court should A reverse only if

there is an abuse of that discretion. @ Helena Chem. Co. v. Wilkins , 47 S.W.3d

486, 499 (Tex. 2001); see also Keeton v. Carrasco , 53 S.W.3d 13, 25

(Tex. App. B San Antonio

2001, pet. denied). An abuse of discretion occurs only when a trial court = s decision is A arbitrary,

unreasonable, and without reference to guiding rules and principles. @ Goode v. Shoukfeh ,

943 S.W.2d 441, 446 (Tex. 1997).

The Texas Supreme Court recently confirmed the key principle

and guiding rule applicable to the decision whether to admit or exclude expert

testimony:

If scientific,

technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education

may testify thereto in the form of opinion or otherwise.

Helena

Chem. ,

47 S.W.3d at 499 (quoting Tex. R. Evid .

702); see Spivey v. James , 1 S.W.3d 380, 382 (Tex. App. B Texarkana

1999, pet. denied). To meet this test, A the expert must

be qualified, @ and A the testimony

must be relevant and be based on a reliable foundation. @ Helena

Chem. , 47 S.W.3d at 499 .

When an expert = s

qualifications have been challenged, A deciding if an

expert is qualified @ requires the

trial court to A ensure that

those who purport to be experts truly have expertise concerning the actual

subject about which they are offering an opinion. @ Id.

(quoting Gammill v. Jack Williams Chevrolet,

Inc ., 972 S.W.2d 713, 719 (Tex. 1998); Broders

v. Heise , 924 S.W.2d 148, 152 (Tex. 1996)); see

also Hall v. Huff , 957 S.W.2d 90, 99-101 (Tex. App. B Texarkana 1997,

pet. denied). In this case, however, Volkswagen

does not challenge the qualifications of either disputed expert.

When the relevance of expert testimony has been

challenged, A The question

under Rule 702 is not whether the jurors know something about this area

of expertise but whether the expert can expand their understanding of this area

in any way that is relevant to the disputed issues in the trial. @ Glasscock v. Income Prop. Servs ., Inc. , 888 S.W.2d 176, 180 (Tex. App. B Houston [1st

Dist.] 1994, writ dism'd by agr .);

see also Wichita County v. Hart , 989 S.W.2d 2, 12 (Tex. App. B Fort Worth

1999, pet. denied). Volkswagen does not

challenge the relevance of the disputed expert testimony.

When the reliability of an expert = s testimony is challenged, the trial court

must A gauge @ the expert = s reliability

by ensuring A that the

opinion comports with applicable professional standards outside the courtroom. @ [3] Helena Chem. , 47 S.W.3d at 499

(quoting Gammill , 972 S.W.2d at 725‑26);

see also Southland Lloyd's Ins. Co. v. Tomberlain ,

919 S.W.2d 822 , 827‑28 (Tex. App. B Texarkana 1996,

writ denied). The trial court is not

to determine whether the expert = s conclusions are

correct, but only whether the analysis used to reach those conclusions is

reliable. Gammill ,

972 S.W.2d at 728 . A trial court = s gatekeeping

function under rule 702 has not replaced cross-examination as the A traditional and

appropriate @ method for attacking A shaky but admissible @ evidence. See id.

Volkswagen = s specific challenge

with regard to Dr. Edward Cox asserts that his expert testimony was unsupported

by independent testing. In General

Motors v. Sanchez , General Motors raised a similar complaint that the

expert did not test his automotive design theory, and the Texas Supreme Court

held A the plaintiffs

did not have to build and test an automobile transmission to prove @ their design

defect case. Gen. Motors Corp. v.

Sanchez , 997 S.W.2d 584, 592 (Tex. 1999).

Instead, the Sanchez court held that A testimony about

the engineering principles underlying @ the expert = s automotive

engineering testimony was sufficient. Id.

at 591 . In this case, Dr. Cox offered a

complete explanation of the engineering principles underlying his opinions to

the satisfaction of the trial court and the jury. This Court = s review of the record confirms that Dr.

Cox = s testimony,

which explains how the engineering principles and the evidence both support his

opinions, meets the reliability standards under the Helena Chemical and Gammill cases. Moreover, if we were to accept Volkswagen = s argument that

Dr. Cox needed testing to support his opinions, we note that Dr. Cox = s opinions were

supported by Volkswagen = s testing, as

well as the lateral and vertical force testing he and Ron Walker conducted in this

case.

The remainder of Volkswagen = s challenge to Dr. Cox = s expert

testimony either faults Dr. Cox = s explanation

of how the Volkswagen Passat became defective or

questions Dr. Cox = s conclusions

rather than his methodology or his data.

First, we note that proof of a products liability claim does not require

proof of how the product became defective:

Strict

liability does not require a specific showing of how the product became

defective. In a classic case in which a consumer found a putrefied big toe in a

plug of chewing tobacco, the consumer was not required to prove how the big toe

got there or whose toe it was. That is

the nature of products liability. This rule evolved because a consumer is not in

a position to know the manufacturing process and how the defect might have

occurred. . . . The rule that a consumer

does not have to show specifically how a product became defective is also based

on a consumer's right to receive a safe product from the manufacturer.

Sipes v. Gen. Motors

Corp .,

946 S.W.2d 143, 155 (Tex. App. B Texarkana

1997, writ denied) (citations omitted); see also Ford Motor Co. v. Gonzalez ,

9 S.W.3d 195, 199 (Tex. App. B San Antonio

1999, no pet.). Second, while a party

may challenge the reliability of an expert = s methodology

or data, challenges that merely attack the expert = s conclusions are improper and invasive of

the jury = s

province. See Gammill ,

972 S.W.2d at 728 .

Volkswagen = s challenge

concerning Ron Walker contends that his expert opinions A simply make no

sense @ to

Volkswagen. Volkswagen = s contention

that Mr. Walker = s testimony A simply makes no

sense @ is an improper

attack on his conclusions. Cf. Gammill , 972 S.W.2d at 728 . Rather, the proper way to exclude such

testimony would be to attack the method by which the expert reached those

absurd conclusions, rather than attacking the conclusions themselves. See id.

In this case, Mr. Walker = s testimony

made sense to the trial judge acting as gatekeeper and made sense to the

jury. In our system of justice, the

trial judge is entrusted as gatekeeper of the evidence, the jury is entitled to

respect and deference, and the jury = s role as fact

finder is treated with sanctity and protected by the Texas Constitution. See, e.g., Herbert v. Herbert , 754 S.W.2d

141, 143-44 (Tex. 1988) (discussing sanctity, deference, and respect for jury = s function); see

also Sanchez , 997 S.W.2d at 590 (discussing trial court = s role as

gatekeeper). Volkswagen = s argument that

Mr. Walker = s testimony is

comparable to testimony that A the world is

flat @ deprives the

jury of its proper respect and deference.

Cf. Coxson v. Atl .

Life Ins. Co. , 179 S.W.2d 943, 945 (Tex. 1944) ( A It is

peculiarly within the province of the jury to weigh opinion evidence, taking

into consideration the intelligence, learning, and experience of the witness

and the degree of attention which he gave the matter. @ ). This Court = s review of the record confirms that Mr.

Walker = s testimony

meets the reliability standards under the Helena Chemical and Gammill cases.

Accordingly, we overrule Volkswagen = s third issue.

Cumulative

Error

In its fourth issue, Volkswagen contends that the cumulative effect of

the trial court = s erroneous

evidentiary rulings mandates a new trial.

Multiple errors, even if considered harmless if taken separately, may

result in reversal and remand for a new trial if the cumulative effect of such

errors is harmful. Weidner v. Sanchez ,

14 S.W.3d 353, 377 (Tex. App. B Houston [14th Dist.]

2000, no pet.); Brown v. Hopkins , 921 S.W.2d 306, 319 (Tex. App. B Corpus Christi 1996,

no writ); Fibreboard Corp. v. Pool , 813

S.W.2d 658, 695 (Tex. App. B Texarkana 1991, writ

denied). However, before an appellate

court may reverse a judgment and order a new trial, it must determine that the

error committed by the trial court was reasonably calculated to cause and

probably did cause the rendition of an improper judgment. Tex.

R. App. P. 44.1(a); Weidner , 14 S.W.3d at 377 ; Fibreboard Corp. , 813 S.W.2d at 695 . An appellant must show, based on the record

as a whole, that but for the alleged errors, the jury would have rendered a

verdict favorable to it. Weidner ,

14 S.W.3d at 377 . We note that the

cumulative error doctrine infrequently finds favor with appellate courts. See, e.g., Crescendo Invs .,

Inc. v. Brice , 61 S.W.3d 465 , 481 n.16 (Tex. App. B San Antonio 2001, pet.

denied) ( A Some reported cases

refuse to discuss cumulative error points as redundant, while most examine the

points and invariably overrule them. @ ).

We have previously held that the trial court did not err in its

evidentiary rulings, therefore, we overrule Volkswagen = s fourth issue

regarding cumulative error.

Prejudgment

Interest

In its fifth issue, Volkswagen contends that the trial court abused

its discretion by awarding prejudgment interest during the A lengthy delay caused

by the plaintiffs. @ Specifically, Volkswagen argues that the

trial court abused its discretion by awarding the appellees

prejudgment interest for the sixteen month period between the first and second

judgments in this case. According to

Volkswagen, the award of prejudgment interest A overcompensates the plaintiffs for the lengthy

delay that occurred at their insistence, and it punishes Volkswagen for its

success in the first trial. @ Volkswagen = s argument that appellees

delayed the entry of judgment is premised solely on the fact that appellees sought and obtained a new trial. Volkswagen neither contends that any other

actions by appellees caused delay, nor does it

contend that appellees unnecessarily prolonged the

period of time elapsing between the first trial and the ultimate entry of

judgment.

An appellate court reviews a trial court = s award of prejudgment interest under an abuse of

discretion standard. J. C. Penney

Life Ins. Co. v. Heinrich , 32 S.W.3d 280, 289 (Tex. App. B San Antonio 2000, pet.

denied); European Crossroads Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d

45, 55 (Tex. App. B Dallas 1995, writ

denied). The statutory prejudgment

interest provisions encourage parties to seek prompt resolution of their

disputes. Purcell Const., Inc. v.

Welch , 17 S.W.3d 398, 403 ( Tex. App. B Houston [1st Dist.]

2000, no pet.). Thus, a court may order

that prejudgment interest does not accrue during periods of delay in the

trial. Tex.

Fin. Code Ann . ' 304.108(a) ( Vernon Supp. 2002). In considering this issue, the court

considers periods of delay caused by a defendant and periods of delay caused by

a claimant. Tex. Fin. Code Ann . ' 304.108(b) ( Vernon Supp. 2002).

There is no authority for the proposition that pursuing one = s legal remedies

through requesting and receiving a new trial constitutes A delay @ for the purposes of

calculating an award of prejudgment interest. Therefore, we overrule Volkswagen = s fifth issue.

Future

Medical Expenses

By its sixth issue, Volkswagen contends that the trial court erred in

not reducing the amount of the award for Jacquelyn Guerra = s future medical

expenses to reflect the present value of these damages.

Appellees = expert life care planner, Ginny Stegent , testified that Jacquelyn Guerra = s medical expenses

could run as high as $39,800 per year and that Jacquelyn = s life expectancy was

60 years. There was other testimony

indicating that future medical expenses could range from $822,000 to $2,388,000. In contrast, Volkswagen = s expert testified

that the present value of the greatest amount indicated by Stegent ,

$2,208,000, was $1,376,000. The jury

awarded appellees $2,000,000 for future medical

care. Volkswagen thus argues that, as A a matter of law, @ there is insufficient

evidence to support an award of more than $1,376,000. Volkswagen cites no authority for the

proposition that damages must be reduced to reflect present value, but rather

cites C&H Nationwide, Inc. v. Thompson , 903 S.W.2d 315, 324 (Tex.

1994), for the proposition that present value A is not simply a judgment call by the jury but a

mathematical calculation. @

The standard of review for an excessive damages complaint is factual

sufficiency of the evidence. Maritime

Overseas Corp. v. Ellis , 971 S.W.2d 402, 406 (Tex. 1998); Brownsville

Pediatric Ass = n v. Reyes , No. 13-00-273-CV,

2002 Tex. App. LEXIS 37, *10 (Corpus Christi Jan. 3, 2002, no pet.); N. Am.

Refractory Co. v. Easter , 988 S.W.2d 904, 912 (Tex. App. B Corpus Christi 1999, pet.

denied).

Texas follows the A reasonable probability @ rule for future

damages for personal injuries. Fisher

v. Coastal Transp . Co. , 230 S.W.2d 522, 525 ( Tex. 1950); Rosenboom Mach. & Tool, Inc. v. Machala , 995 S.W.2d 817, 828 (Tex. App. B Houston [1st Dist.]

1999, pet. denied); City of San Antonio v. Vela , 762 S.W.2d 314, 321

(Tex. App. B San Antonio 1988, writ

denied). In order to recover for future

medical expenses, the plaintiff must show there is a reasonable probability

that such medical expenses will be incurred in the future. Whole Foods Mkt. Southwest v. Tijerina , 979 S.W.2d 768, 781 (Tex. App. B Houston [14th Dist.]

1998, pet. denied).

No precise evidence is required to support an award for future medical

costs. Id. ; Pipgras

v. Hart , 832 S.W.2d 360, 366 (Tex. App. B Fort Worth 1992, writ denied). Although the preferred practice for

establishing future medical costs is through expert medical testimony, there is

no requirement that the plaintiff establish such costs through expert

testimony. Tijerina ,

979 S.W.2d at 781 . The reasonable value of future medical care may be

established by evidence of the reasonable value of past medical treatment. Id.; see Harvey v. Culpepper , 801

S.W.2d 596, 599 (Tex. App. B Corpus Christi 1990, no

writ); City of Rosenberg v. Renken , 616 S.W.2d

292, 293 (Tex. Civ . App. B Houston [14th Dist.]

1981, no writ); Thate v. Tex. & Pac. Ry . Co. , 595 S.W.2d 591, 601 (Tex. Civ .

App. B Dallas 1980, writ dism = d w.o.j .). The nature of the injury and the plaintiff = s condition at the

time of trial are also relevant to determining an award for future medical

costs. Tijerina , 979 S.W.2d at 781 ;

Pipgras , 832 S.W.2d at 366 . The jury can make its determination of the

amount of future medical expenses and care based on the injuries suffered, the

medical care rendered before trial, the progress toward recovery under the

treatment received, and the condition of the injured party at the time of

trial. Rosenboom

Mach. & Tool, Inc. , 995 S.W.2d at 828 ; Vela , 762 S.W.2d at 321 . To sustain an award of future medical

expenses, the plaintiff must present evidence to establish that in all

reasonable probability, future medical care will be required and the reasonable

cost of that care. Rosenboom

Mach. & Tool, Inc. , 995 S.W.2d at 828 .

It is within the jury = s sound discretion to

determine what amount, if any, to award in future medical expenses. Id.; Tijerina ,

979 S.W.2d at 781 ; see Thate , 595 S.W.2d at

601 . Issues such as life expectancy,

medical advances, and the future costs of products and services are, by their

very nature, uncertain, and therefore, appellate courts are particularly

reluctant to disturb a jury = s award of these

damages. Brownsville Pediatric Ass = n , 2002 Tex. App. LEXIS

37, at *12-13 . However, this standard of

review is A not so nebulous that a

reviewing court will uphold a jury award for future medical expenses when there

is no evidence. @ Harvey , 801 S.W.2d at 599 . In

this case, the trial court instructed the jury to calculate what sum of money, A if paid now in cash @ would compensate

Jacquelyn Guerra for medical care A that in reasonable

probability will be required in the future. @ Under Mo.

Pac. R.R. Co. v. Kimbrell , 334 S.W.2d 283, 286

(Tex. 1960), the jury was qualified to make the calculation regarding future

medical expenses based on its common knowledge of interest rates, and no

evidence of the earning power of money was required to be introduced. See Rendon v. Avance , 67 S.W.3d 303 (Tex. App. B Fort Worth 2001, pet.

filed). We presume the jury properly

followed the trial court = s instructions. See id.

Moreover, the evidence shows that Volkswagen = s expert Ricardo

Cortez based his estimation of present value by assuming a discount rate of

three percent and a growth rate of only one percent. Nevertheless, Volkswagen = s expert conceded that

medical expenses could increase by as much as twenty to thirty times over the

next sixty years, and that it is impossible to project how much expenses will

actually increase. Given this testimony,

the award of future medical expenses was within the jury = s sound

discretion. See Rosenboom

Mach. & Tool, Inc. , 995 S.W.2d at 828 ; Tijerina ,

979 S.W.2d at 781 ; Thate , 595 S.W.2d at 601 .

We overrule Volkswagen = s sixth issue.

New

Trial

In its seventh and final issue, Volkswagen argues that the trial court

abused its discretion when it A arbitrarily discarded @ the verdict from the

first trial and granted the plaintiffs a new trial A in the interest of

justice. @ Volkswagen contends that (1) the trial court abused

its discretion by granting a new trial, (2) an order granting a new trial

should be subject to review, (3) by granting a new trial without any basis or

any explanation, the trial court violated Volkswagen = s constitutional

rights, and (4) this Court should render judgment on the verdict from the first

trial in the A interest of justice. @

An order granting a new trial within the trial court = s period of plenary

power is not subject to review either by direct appeal from that order, or from

a final judgment rendered after further proceedings in the trial court. Cummins v. Paisan

Constr . Co. , 682 S.W.2d 235, 236 (Tex. 1984)(per curiam ); Vandehaar v.

ALC Fin. Corp. , 25 S.W.3d 406, 410 (Tex. App. B Beaumont 2000, pet. denied).

It appears that Volkswagen has previously pursued this same issue, in

this case, in the Texas Supreme Court by writ of mandamus. See In re Volkswagen of Am., Inc. , 22

S.W.3d 462 (Tex. 2000). The supreme

court denied the petition for mandamus, but Justice Hecht, joined by Justice

Owen, dissented on grounds that he believed that A while trial courts should have broad discretion

to grant a new trial in the interest of justice, that discretion should not be

insulated from all review, and trial courts should be required to state reasons

for their ruling. @ Id. at 462 . The Texas Supreme Court had previously denied

a similar petition for mandamus in another case, In re BMW , 8 S.W.3d 326

(Tex. 2000), with Justices Hecht and Owen again dissenting.

As an intermediate appellate court, we are bound to follow the Texas

Supreme Court = s expressions of the

law and to leave changes in the law to that court. See Dow Chem. Co. v. Rylander ,

38 S.W.3d 741, 746 (Tex. App. B Austin 2001, pet.

denied), cert. denied , 122 S.Ct . 466 (2001); Austin

v. Healthtrust , Inc. , 951 S.W.2d 78, 80 (Tex.

App. B Corpus Christi 1997), aff = d, 967 S.W.2d 400 (Tex.

1998). Under established law, the trial

court = s order granting appellees a new trial is not subject to review from a final

judgment rendered after further proceedings in the trial court. Cummins , 682 S.W.2d at 236 .

We overrule Volkswagen = s seventh issue.

Having overruled each of Volkswagen = s issues on appeal, the judgment of the trial

court is affirmed in its entirety.

____________________

ROGELIO

VALDEZ

Chief

Justice

Publish.

Tex. R. App. P . 47.3.

Opinion

delivered and filed

this 9 th day of May , 2002.

[1] The

trial court entered its dismissal pursuant to an earlier version of this

article. See act of May 27, 1965 , 59th

Leg., R.S.., ch . 722, ' 7, 1965 Tex. Gen.

Laws 317, 492 (amended 1983, 1989, 1993).

However, subsequent changes have not been substantive, therefore, all

references herein are to the current version of this article. See Tex.

Code Crim. Proc. Ann. art. 42.12, ' 20 ( Vernon Supp.

2002).

[2] We note

that Dempsey is distinguishable from Glenn and the instant

case. The juror in Dempsey had

been convicted of a state jail felony which rendered him ineligible for a

dismissal of the conviction under article 42.12. Dempsey , 38 S.W.3d at 289 . Moreover, the parties therein conceded that

the juror was disqualified. See id. at

289 n.4.

[3] The

Texas Supreme Court has also identified six nonexclusive Robinson

factors that may be considered when evaluating testimony based on the type of theories

typically subjected to peer review and rate-of-error analysis, but the court

has since A recognized

that the Robinson factors may not apply to certain testimony. @ See Helena Chem. , 47 S.W.3d at 499

(citing Gammill , 972 S.W.2d at 726 ); E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d

549, 557 (Tex. 1995) (including factors concerning A peer

review publication @ and A potential

rate of error @ which Gammill

recognized A simply do not fit @ when

reviewing engineering expert testimony)).

This case is like Gammill in that it

involves engineering testimony that should not measured against the Robinson

factors.